Citation Nr: 0804440
Decision Date: 02/07/08 Archive Date: 02/13/08
DOCKET NO. 02-17 364 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to an effective date earlier than July 28, 1971,
for the grant of a total rating based on individual
unemployability (TDIU).
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter,
Attorney-at-Law
ATTORNEY FOR THE BOARD
Nathaniel J. Doan, Associate Counsel
INTRODUCTION
The veteran had active service from June 1964 to June 1967.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Fort Harrison, Montana. The veteran appealed the denial of
an earlier effective date for the grant of TDIU to the Board.
In December 2003, the Board issued a decision which denied
the claim for an earlier effective date for the grant of
TDIU. Thereafter, the veteran appealed the Board's decision
to the United States Court of Appeals for Veterans Claims
(Court).
In December 2006, as discussed in greater detail below, the
Court found that the Board had erred by treating the
veteran's claim as a freestanding claim for an earlier
effective date. The Court found that the appropriate remedy
was to vacate the December 2003 Board decision and dismiss
the appeal.
FINDINGS OF FACT
1. In August 1971, the RO issued a rating decision granting
entitlement to TDIU, assigning an effective date of July 28,
1971.
2. The veteran did not perfect an appeal regarding the
effective date assigned to the grant of TDIU.
CONCLUSIONS OF LAW
1. The August 1971 rating decision that granted entitlement
to TDIU is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 3.160(d), 20.1103 (2007).
2. There is no remaining case or controversy over which the
Board has jurisdiction, and the appeal is dismissed.
38 U.S.C.A. §§ 7104, 7105, 7107 (West 2002); 38 C.F.R.
§§ 19.4, 20.101, 20.200, 20.204 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In an August 1971 rating decision, the RO granted entitlement
to TDIU, assigned an effective date of July 28, 1971. The
veteran did not appeal this decision. See 38 U.S.C.A. §
7105. Although the RO subsequently terminated entitlement to
TDIU, entitlement to TDIU was later restored back to the July
28, 1971 effective date. The restoration of this benefit was
effectuated by a January 1999 rating decision.
In August 1999, the veteran's attorney-representative
submitted a claim for entitlement to TDIU for the period of
June 23, 1967 (the day following separation from active
service) to July 27, 1971 (the day prior to effective date
assigned by the RO). The veteran's contention is based on a
claim for benefits submitted in July 1967 and adjudicated in
a December 1967 rating decision.
As noted above, the Board denied the claim in a December 2003
decision. In its December 2006 decision, the Court noted
that the attorney-representative contended that VA had
incorrectly adjudicated the claim based on clear and
unmistakable error (CUE) and as a claim for an earlier
effective date, instead of properly considering it upon the
basis of the claimed non-finality of the December 1967 rating
decision.
Although noting that Board has cited general provisions of
law concerning CUE, the Court found no merit to the assertion
that VA erroneously treated the August 1999 claim as a claim
of CUE. In addition, the Court found that the notion of a
freestanding claim based on the non-finality of a prior
adjudication had been explicitly rejected by the Court. See
DiCarlo v. Nicholson, 20 Vet. App. 52 (2006).
The Court concurred with the veteran that VA had consistently
developed the appeal as a freestanding claim for an earlier
effective date. The Court noted that it has previously held
that such treatment of these types of claims vitiated the
rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296,
300 (2006).
The Court further noted the United States Court of Appeals
for the Federal Circuit , in Cook v. Principi, 318 F. 3d
1334, 1337 (Fed. Cir. 2002), cited two statutory exceptions
to the finality of RO decisions: Reopening a prior decision
based on new and material evidence or revision of that prior
decision based on CUE. See 38 C.F.R. §§ 3.105, 3.156. In
this case, only a claim based on an assertion of CUE could
conceivably result in an award of an earlier effective date.
See 38 C.F.R. § 3.400. The Court concluded that the
veteran's failure to raise his arguments as CUE prevented the
Court from hearing them.
As the Court found that the Board had erred by treated the
veteran's claim as a freestanding claim for an earlier
effective date for the grant of entitlement to TDIU, the
Court found that the appropriate remedy was to vacate the
December 2003 Board decision and dismiss the appeal. See
Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). The appeal
was dismissed without prejudice for the veteran to present
his argument to the RO in a request for revision on the basis
of CUE.
Accordingly, to the extent that a freestanding claim for an
earlier effective was adjudicated, such was an attempt to
overcome the finality of the August 1971 rating decision, and
his appeal must be dismissed.
As such, there is no case or controversy over which the Board
has jurisdiction. 38 U.S.C.A. §§ 7104, 7105, 7107; 38 C.F.R.
§§ 19.4, 20.101, 20.200, 20.204. The appeal is dismissed.
ORDER
The appeal is dismissed.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs